Sign-on Letter asking the leadership of the House and Senate to block US support for a
diplomatic conference at WIPO until the public can comment on the proposal.

September/October 2005

The following is a sign-on letter asking the leadership of the House and Senate to block
US support for a diplomatic conference at WIPO to create a new global intellectual property
right for broadcasting and webcasting organizations, at least until the public can comment
on the proposal. We are hoping to close out the letter by October 11.
At present the United States trade negotiators are putting enormous pressure
on WIPO to schedule the diplomatic conference by the 2nd quarter of 2006, and to include
a highly controversial new IP right for "webcasting," which is defined extremely broadly.
The proposal would give broadcasters and web page operators a property right in
information now in the public domain, or which would otherwise be freely available from
copyright owners. It creates a new thicket of rights that the public would
have to deal with before they could share or reuse works.

We are writing to ask that Congress insist that the United States negotiators block a diplomatic conference at WIPO that would create a new Intellectual Property Right for Broadcasting and Webcasting Organizations until a federal register notice requests public comment on the costs and benefits of the proposal.

The treaty proposal is complex and will have far-reaching consequences. But few US firms or members of the public are even aware of the proposal. Moreover, the U.S. government agencies responsible for WIPO negotiations on the treaty have not yet adequately analyzed even the most basic issues, including, for example, the impact of the treaty on the Internet, or the required changes in U.S. law.

We oppose in particular a proposal in the draft treaty that would create a new intellectual property right affecting both the rights of the general public and the rights of copyright holders. Specifically, this proposal would grant to persons who make combinations or representations of images and sounds available to the public over broadcast networks and other networks, including the Internet, a 50-year exclusive right to authorize or prohibit the copying or redistribution of such information. Not only would this right, granted to broadcasters and webcasters, allow those who transmit content to effectively close off works in the public domain, but it also would encumber the rights of copyright holders (making it harder for them to license their works to others), and would pre-empt the rights of many stakeholders, including the general public, under our copyright law.

This new intellectual-property right is an expanded version of a related right for broadcasting organizations that is provided for in the Rome Convention, a treaty the United States and more than 100 other countries have never signed. Nevertheless, the United States is proposing to extend this controversial right to the Internet (and other networks, including private networks).

A small number of webcasters are asking that they be given the same intellectual property rights that the treaty would give to broadcasters. But many other Internet companies, including those also involved in webcasting, "reject the idea that the Internet needs or will benefit from the extension of these pseudo-copyrights to so-called 'Webcasters.'" These companies further argue that "Adding a new layer of intermediaries, over and above copyright holders, for the re-use of information on the Internet benefits no one -- save those intermediaries. If an Internet company has the rights to a work, or need not secure the rights to a work due to a limitation in copyright, or because the work is in the public domain, there is no rational reason to require that the company also seek the permission of a further intermediary whose sole creative contribution to the work is in making it available." [1]

Finally, we note that there are serious definitional problems with the proposal's approach to webcaster rights -- it may burden all World Wide Web content (including text and still images) with a rights framework that was designed for broadcasting radio waves over the air.

We ask that any decision about a diplomatic conference be deferred until there is an opportunity for the affected parties -- ranging from librarians and civil society groups to recording artists, filmmakers, and publishers -- to comment on the proposal through an appropriate federal register notice.

Sincerely,

Mark Cooper
Consumer Federation of America

Mike Godwin
Legal Director
Public Knowledge

James Packard Love
Consumer Project on Technology

Professor Jennifer M. Urban
The Law School, University of Southern California*

Robin Gross
IP Justice

Frannie Wellings
Free Press

Jeannine Kenney
Consumers Union

Paul Hyland
Computer Professionals for Social Responsibility (CPSR)

Wendy Seltzer
Fellow, Berkman Center for Internet & Society at Harvard Law School

Professor James Boyle
Duke Law School*

Gwen Hinze
Electronic Frontier Foundation (EFF)
San Francisco, CA

David Tannenbaum
Union for the Public Domain (UPD)

Joshua D. Sarnoff
Glushko-Samuelson Intellectual Property Law Clinic
Washington College of Law
American University
Washington, DC